If you’re on the email mailing list for any large Canadian legal or consulting firms, you have no doubt received a deluge of “request-for-consent” emails in the past few months. Each one is the same: “Canada’s new anti-spam law requires us to get your consent in order to continue sending you our newsletter. Click the link below to confirm your consent to receive email from us.”

Ironically, these request-for-consent emails are pretty spam-like themselves. And, as it turns out, they are treated as spam under the new law as well.

Canada’s new anti-spam law is indeed coming into force on July 1, 2014. Generally speaking, the law prohibits the sending of unsolicited commercial electronic messages. Penalties for non-compliance are potentially very hefty, which has caused a lot of businesses to pay attention.

It is true that firms do need recipients’ consent in order to send them email newsletters and other marketing materials. However, there is a concept of “implied” consent in the new law. A firm will have a recipient’s implied consent to receive commercial electronic messages if any of the following apply:

  • The sender and receiver have an existing business relationship, including anyone who has purchased goods or services from the sender within the last two years.
  • The sender and receiver have an existing non-business relationship, including volunteers, charity donors, and mutual members of clubs and associations.
  • The receiver has posted their electronic address publicly and the message is relevant to their business, role, function, or duties.
  • The receiver has disclosed their electronic address to the sender (e.g. by giving them a business card) and the message is relevant to their business, role, function, or duties.

If the sender has the recipient’s implied consent, then it can send the recipient commercial electronic messages without first getting express consent. The messages do have to comply with the new law (e.g. by having an unsubscribe mechanism and contact information), but recipients in the classes above are presumed to have opted-in to the mailing list until they take action to opt-out.

Generally in the case of a legal or consulting firm’s newsletter mailing list, all the recipients would fit into one or more of the above classes of implied consent. Otherwise, how did they get on the mailing list in the first place?

The maddening part of the “request-for-consent” emails that have been flying around is that, as of July 1, such emails will either:

  1. be unnecessary, since the sender already has each recipient’s implied consent; or
  2. be prohibited commercial electronic messages themselves.

The law is clear that an electronic message that contains a request for consent is also a commercial electronic message (see section 1(3)). Accordingly, if a recipient doesn’t fall into a category of implied consent, then sending a request for consent will be a violation of the new law. Legal and consulting firms that ought to know better may therefore be exposing themselves to fines and penalties by sending these request-for-consent emails.

Stuart Freen is a lawyer at Sotos LLP in Toronto practicing in intellectual property law. Stuart may be reached at sfreen@sotosllp.com or by phone at 416-977-0007.